OVERVIEW

On Dec. 14, 2018, a federal judge ruled
in Texas v. Azar that the entire Affordable Care Act (ACA) is invalid
due to the elimination of the individual mandate penalty in 2019. Following the
ruling, on Dec. 20, 2018, the federal judge issued a stay
and partial
final judgment in the case. As a result, the ACA will remain in place pending appeal. The Department of
Health and Human Services (HHS) also confirmed
that it will continue administering and enforcing all aspects of the ACA.

This lawsuit was filed by 20 states as a result of the
2017 tax
reform law that eliminates the individual mandate penalty. In 2012, the
U.S. Supreme Court upheld the ACA on the basis that the individual mandate is a
valid tax. With the penalty’s elimination, the court in this case ruled that
the ACA is no longer valid under the U.S. Constitution.

ACTION STEPS

This ruling is expected to be
appealed and will likely be taken up by the Supreme Court. As a result, a final
decision is not expected to be made until that time. However, the White House
announced that the ACA will remain in
place pending appeal.

Background

The ACA imposes an “individual mandate” beginning in 2014,
which requires most individuals to obtain acceptable health insurance coverage
for themselves and their family members or pay a penalty. In 2011, a number of
lawsuits were filed challenging the constitutionality of this individual
mandate provision.

In 2012, the U.S. Supreme Court upheld the constitutionality
of the ACA in its entirety, ruling that Congress acted within its
constitutional authority when enacting the individual mandate. The Court agreed
that, while Congress could not use its power to regulate commerce between
states to require individuals to buy health insurance, it could impose a tax
penalty using its tax power for
individuals who refuse to buy health insurance.

However, a 2017 tax reform bill, called the Tax Cuts and
Jobs Act, reduced the ACA’s individual mandate penalty to zero, effective
beginning in 2019. As a result, beginning in 2019, individuals will no longer
be penalized for failing to obtain acceptable health insurance coverage.

Texas v. United States

Following the tax reform law’s enactment, 20
Republican-controlled states filed a lawsuit again challenging the ACA’s
constitutionality. The plaintiffs, first, argued that the individual mandate
can no longer be considered a valid tax, since there will no longer be any
revenue generated by the provision.

In addition, in its 2012 ruling, the Supreme Court indicated
(and both parties agreed) that the individual mandate is an essential element
of the ACA, and that the remainder of the law could not stand without it. As a
result, the plaintiffs argued that the elimination of the individual mandate penalty
rendered the remainder of the ACA unconstitutional.

The U.S. Justice Department chose not to fully defend the
ACA in court and, instead, 16 Democratic-controlled states intervened to defend
the law.

Federal Court Ruling

In his ruling, Judge Reed O’Connor ultimately agreed with
the plaintiffs, determining that the individual mandate can no longer be
considered a valid exercise of Congressional tax power. According to the court,
“[u]nder the law as it now stands, the individual mandate no longer ‘triggers a
tax’ beginning in 2019.” As a result, the
court ruled that “the individual mandate, unmoored from a tax, is
unconstitutional.”

Because the court determined that the individual mandate is no longer valid, it now had to determine whether the provision is “severable” from the remainder of the law (meaning whether other portions of the ACA can remain in place or whether the entire law is invalid without the individual mandate). In determining whether the remainder of the law could stand without the individual mandate, the court pointed out that “Congress stated three separate times that the individual mandate is essential to the ACA … [and that] the absence of the individual mandate would ‘undercut’ its ‘regulation of the health insurance market.’ Thirteen different times, Congress explained how the individual mandate stood as the keystone of the ACA … ‘together with the other provisions’ [the individual mandate] allowed the ACA to function as Congress intended.” As a result, the court determined that the individual mandate could not be severed, making the ACA invalid in its entirety.

Impact of the Federal Court Ruling

Judge O’Conner’s ruling left many questions as to the
current state of the ACA, because it did not order for anything to be done or
stay the ruling pending appeal. However, on Dec. 20, 2018, the Judge O’Conner
issued a stay and partial final judgment in the case, confirming that the ACA
will remain in place pending appeal. In addition, this ruling is expected to be
appealed, and the White House announced that the ACA will remain in place until
a final decision is made. On Dec. 17, 2018, HHS also confirmed that it will
continue administering and enforcing all aspects of the ACA. Many industry
experts anticipate that the Supreme Court will likely take up the case, which
means that a final decision will not be made until that time.

While these appeals are pending, all existing ACA provisions
will continue to be applicable and enforced. Although the individual mandate
penalty will be reduced to zero beginning in 2019, employers and individuals
must continue to comply with all other applicable ACA requirements. This ruling
does not impact the 2019 Exchange enrollment, the ACA’s employer shared
responsibility (pay or play) penalties and related reporting requirements, or
any other applicable ACA requirement.

This ACA Compliance Bulletin is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.

As large-scale cyber attacks continue to make headlines
on a regular basis, many businesses have started to realize the importance of
safeguarding their systems and data. However, hackers will keep exploiting
cyber defense trends and new technology to steal valuable information and cause
chaos.

Staying aware of developments in cyber security can help
your business prepare an effective response plan. Credit reporting agency
Experian recently released its 2019 data breach industry forecast, which
predicts the five biggest cyber threats for the year:

Biometrics—Device manufacturers like Apple, Google and Samsung have started to use biometric scanners as a more secure form of authentication. But as fingerprint and facial recognition systems become more popular, hackers will start to target servers that store biometric data.

Digital skimming—Criminals have used skimmers to steal credit card information for decades, but hackers are looking at a digital version of this crime that can target e-commerce websites.

Wireless carriers—Recent security tests have found that hackers can infiltrate the signaling platform that allows wireless carriers to connect to each other. As a result, hackers may be able to start a large-scale attack on a motor carrier and remotely access data on smartphones.

Cloud vendors—Hackers have targeted cloud computing systems before, but mostly focus on individual businesses instead of the service providers. If a large cloud vendor is attacked, it could expose data from thousands of businesses that assumed their data was safe.

Gaming—Nearly a quarter of the world’s population play games, according to Experian. And since games require downloading third-party software and setting up anonymous accounts, hackers can easily infiltrate systems to install malware or steal financial information.

Businesses host parties for a variety of reasons, including the holidays and organizational accomplishments. While these events are fun, team-building opportunities, they can create a number of risks for the hosting company. In fact, in the event that an employee is injured at the party or causes property damage, the employer is usually the one held responsible. This can lead to costly litigation and reputational harm that can affect a company for years.

To avoid major losses, it’s not only important for employers to secure the right insurance coverage for every individual risk, but to also have a thorough understanding of common holiday party exposures.

Alcohol

Anytime you provide alcohol to individuals in a non-commercial manner, you are considered a social host. This is important to note, as a social host may be responsible for the acts of their guests should their conduct create harm. These risks are compounded when alcohol is served, and employers may be liable for damages following a drunken driving accident or similar incident.

While the best way to reduce alcohol liability risks is to avoid serving it altogether, this isn’t always feasible. To promote the safety of your employees and guests at company-sponsored events, consider the following:

Hold the event off-site at a restaurant or hotel.

Provide plenty of food and non-alcoholic beverages throughout the night.

Serve drinks to guests rather than offering a self-serve bar. Limit the amount of alcohol you will serve. Require servers to measure spirits.

Set up bar stations instead of having servers circulate the room. Place table tents at each bar that remind employees and guests to drink responsibly.

Don’t price alcohol too low, as it encourages overconsumption. Offer a range of low-alcohol and alcohol-free drinks at no charge.

Close the bar an hour before the scheduled end of the party. Do not offer a “last call,” as this promotes rapid consumption.

Entice guests to take advantage of safe transportation options by subsidizing taxis or promoting a designated driver program.

Marijuana Consumption

Similar to alcohol use, marijuana and other drug consumption can directly affect the safety of your party guests. In fact, according to the most recent federal data, 44 percent of vehicle crash deaths can be linked to drug-impaired driving, up from 28 percent a decade earlier.

Marijuana contains hundreds of chemicals, many of which act directly on the body and brain. Individual sensitivity to marijuana can vary, but the general effects include the following:

Dizziness, drowsiness, light-headedness, fatigue, and headaches

Impaired memory, concentration and ability to make decisions

Disorientation and confusion

Suspiciousness, nervousness, anxiety, paranoia, and hallucinations

Impaired motor skills and perception

Dry mouth, throat irritation, and coughing

Increased heartbeat

These health effects can last long after an employee smoked, increasing the potential for accidents or major health concerns. In addition, federal, state and local laws may prohibit marijuana use in certain areas, making it all the more important to educate employees on behavior expectations.

To keep your party guests safe and avoid any liability concerns, consider making clear rules for marijuana use at your party. Remind employees that even though they are at a social event, they are still attending a work function and workplace policies on the use of marijuana still apply.

Workplace Harassment and Discrimination

Even when holding company-sponsored events off-site, employers are expected to enforce their workplace policies and safeguard their employees. In particular, employers must pay extra care to prevent issues of harassment and discrimination at their events, as they can lead to employment claims and costly litigation.

To help keep employees safe at company parties, employers should ensure all of their policies related to harassment, violence, discrimination, and code of conduct are up to date and account for company-sponsored events. Policies should be specific as to what is and is not tolerated, and redistributed them as thoroughly as possible.

In addition, employers should:

Consider making the event a family party where employees can bring their spouse, significant other, children or a friend. This can help deter inappropriate behavior.

Keep event themes and decorations appropriate. Parties should be neutral and not make reference to specific religions or beliefs. In addition, plan your party on a day that does not conflict with religious holidays.

Consider having just one entrance to your party. This will allow you to control who enters the venue and ensure that uninvited guests do not attend.

Food Exposures

Food is a staple of many company-sponsored events, and can actually be a useful way to keep party guest sober and limit alcohol-related liability (starchy foods can help reduce the absorption of alcohol). However, when serving food, there are a number of risks employers should consider.

For instance, employers need to be wary of potential food allergies. In the event that a guest gets sick from the food, they could sue the employer for negligence.

To help protect against this, employers should ask party guests to disclose any of their allergies, either in their RSVP or by contacting the event coordinator directly. In addition, you should specify what ingredients are in every food item, both on the menu and on display cards near the food itself.

For added protection against illnesses, it’s critical that employers promote safe food preparation and handling practices. Moreover, when working with a third-party provider, employers should do their due diligence to ensure they are securing reputable vendors.

Property Damage

Property damage can occur at just about any kind of party, even small, company-sponsored events. As the host, it’s your job to ensure your guests remain safe, behave appropriately and respect the venue and its contents.

It can be difficult to avoid getting sick at work, particularly if you work in close quarters. While you may not be able to avoid germs altogether, the following tips can help reduce your risk of getting sick:

Wash your hands. Germs can cling to many surfaces in the workplace, including elevator buttons, doorknobs and refrigerator doors. To protect yourself from illness, it’s important to wash your hands regularly, especially before you eat or after you cough, sneeze or use the restroom.

Keep your distance. Illnesses like the cold or flu can spread even if you aren’t in close contact with someone. In fact, experts say that the flu can spread to another person as far away as 6 feet. If you notice a co-worker is sick, it’s best to keep your distance.

Get a flu shot. Yearly flu shots are the single best way to prevent getting sick. Contrary to popular belief, flu vaccines cannot cause the flu, though side effects may occur. Often, these side effects are minor and may include congestion, coughs, headaches, abdominal pain and wheezing.

In addition to the above, it may be a good idea to avoid sharing phones, computers and food with your co-workers during flu season. Together, these strategies should help you stay healthy at work.

On April 26, 2018 the IRS announced relief for taxpayers with family coverage under a High Deductible Health Plan (HDHP) who contribute to a Health Savings Account (HSA). For 2018, taxpayers with family coverage under an HDHP may treat $6,900 as the maximum deductible HSA contribution.

A change in the inflation adjustment calculations for 2018 under the Tax Cuts and Jobs Act, reduced the maximum deductible HSA contribution for taxpayers with family coverage under an HDHP by $50, to $6,850 (announced March 5, 2018).Revenue Procedure 2018-27 announces this relief for affected taxpayers and allows the $6,900 limitation to remain in effect for 2018. The $6,900 annual limitation was originally published in Revenue Procedure 2017-37.

On April 9, 2018, the Department of Health and Human Services (HHA) extended transitional relief plans through December 2019. Transitional relief applies to plans that existed before healthcare reform, and that have been allowed to continue without meeting all the Affordable Care Act (ACA) requirements.

For employers, this may allow them to retain plans that are less expensive than ACA compliant plans which utilize uniform rating methodology and are not subject to health underwriting.

Complete details from insurance carriers have not yet been received, but we anticipate all will allow employers the option to continue their transitional relief plans.

Each month a Truss associate will be selected as our “Champion of the Month” by our team of Producers. Those selected live the Truss Pledge each and everyday and show exemplary dedication and service to the organization.

On April 9, 2018, the Department of Health and Human Services (HHA) extended transitional relief plans through December 2019. Transitional relief applies to plans that existed before healthcare reform, and that have been allowed to continue without meeting all the Affordable Care Act (ACA) requirements.

For employers, this may allow them to retain plans that are less expensive than ACA compliant plans which utilize uniform rating methodology and are not subject to health underwriting.

Complete details from insurance carriers have not yet been received, but we anticipate all will allow employers the option to continue their transitional relief plans.